since every one is quoting the Aljehad trust case, here’s some information about the case and the views of wahab ul khairi who was the founder of al-jehad trust…
Judges, experts clarify confusion on Ramday issue
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Judges, experts clarify confusion on Ramday issue**
ISLAMABAD: Two major developments on Sunday almost buried the latest controversy over the ad hoc appointment of Justice Khalilur Rehman Ramday after his retirement on January 12, as Presidency sources said Ramday would be appointed by President Zardari without delay.
Confusion was created by some incorrect interpretations of the Al-Jihad Trust SC judgment, which were explained on Sunday.A credible and relevant source in the Presidency told our sources it is absolutely incorrect that President Asif Zardari has decided not to accept recommendation of Chief Justice Iftikhar Muhammad Chaudhry regarding appointment of Justice Khalilur Rahman Ramday as an ad hoc judge of the Supreme Court after his retirement on January 12, 2010.
The source said according to his information there is no sign or chance that the president will reject the recommendation. He said the news items in the media are speculative and are being spread by some vested interests in the law ministry.
On the other hand, Presidential spokesman Farhatullah Babar told our sources on Sunday evening it is very unfortunate and incorrect to say that the president has already decided to reject the recommendation which the presidency has not even received as yet.
“I can confirm that till the Sunday night the presidency had not received the recommendation of Justice Ramday to be appointed as an ad hoc judge of the Supreme Court,” Farhatullah Babar said, adding: “No decision has been made so far in this regard and he will be in a position to speak on the issue once the presidency receives this recommendation.”
The source in the presidency, however, asserted according to his knowledge, the president would take no time in accepting any recommendation in this regard after it is received. The other major development was the statement of Habib Wahabul Khairi, the founder of the Al-Jihad Trust and winner of the historic Judges Case of 1996, which laid down the basic rules and regulations for the appointment of judges.
**Khairi, while talking to our sources, said confusion regarding the judgment in his case was being deliberately spread and some people are trying to befool the people through wrong interpretations of the judgment. Khairi said at no point the Al-Jihad Trust case judgment declares that the senior most chief justice of a high court will be elevated to the Supreme Court.
“Besides giving the concept of legitimate expectancy to be considered for higher judicial appointments in the judgment, it remains the discretion of the chief justice to recommend elevation of either the chief justice of a high court or the senior most judge of that high court as a judge of the Supreme Court.**
“In the present case, the chief justice has full constitutional powers and authority to recommend Justice Saqib Nisar for elevation to the Supreme Court and not consider Lahore High Court Chief Justice Khwaja Sharif Ahmad for this elevation,” Khairi said, adding: “At no point the Al-Jihad Trust case judgment says that a superseded judge will have to resign.”
Khairi said the judgment of the Al-Jihad Trust Case has been misunderstood by some people regarding ad hoc appointments. “One thing should be made clear that the judgment of the Al-Jihad Trust Case dealt with a specific situation and it in no way challenges, alters or deletes the method already written and powers conferred on the chief justice of Pakistan in the Constitution of Pakistan under Article 182 for the appointment of an ad hoc judge of the Supreme Court.”
Khairi said as the recommendation of the judge of the Lahore High Court to be elevated to the Supreme Court has been made by the chief justice, there is no vacancy in the Supreme Court. “Secondly, even if recommendation is not made judgment of Al-Jihad Trust Case does not amend the Constitution and in accordance with Article 182, the chief justice of the Supreme Court could write for any ad hoc appointment and the 1996 Judges Case verdict does not apply to the present situation.”
**Former chief justice of Pakistan Justice Saeeduzzaman Siddiqui told our sources on Sunday at no point the Al-Jihad Trust Case judgment binds the chief justice to recommend the chief justice of a high court to be elevated as judge of the Supreme Court and the chief justice could recommend number two or even number three senior most judge for this elevation.
He said confusion in this regard has been created because of intermixing of the Al-Jihad Trust Case with Malik Asad Case by some people. He said in Malik Asad case, he himself headed the bench, which gave the verdict in 1997 that senior most judge of a high court will become the chief justice of that high court and senior most judge of the Supreme Court will become the chief justice of Pakistan. He said what needed to be understood is that the seniority principle is not applied in the issue of elevation of high court judge to the Supreme Court.
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Justice Siddiqui declared if the chief justice recommends Justice Saqib Nisar, who is second in seniority, for elevation to the Supreme Court and ignores the chief justice of the same high court, neither the Constitution nor the Al-Jihad Trust case bars him from doing so.
The former chief justice of Pakistan said if the chief justice has recommended the appointment of Justice Saqib Nisar to fill the only vacant post in the Supreme Court there is no problem with reference to the Al-Jihad Trust Case judgment and it does not influence the appointment of Justice Ramday as an ad hoc judge of the Supreme Court.
Former Supreme Court judge Justice Wajihuddin Ahmad told our sources that those trying to create confusion need to understand two things: seniority and fitness. Wajih said appointment of a judge on a permanent position is entirely different from the appointment of a judge on ad hoc basis.
He said while making appointments in high courts and the Supreme Court criteria of seniority-cum-fitness is considered but seniority has top priority. While making the appointments on ad hoc basis in the Supreme Court the criteria is the same but here fitness is more relevant.
He said ad hoc appointments are made in accordance with Article 182 of the Constitution and here the chief justice does not ‘recommend’ but according to exact words of the Constitution ‘writes’ to the judge, with approval of the president, informing him of his appointment as an ad hoc judge.
Justice Wajih said the Al-Jihad Trust Case judgment was comprehensive and has laid the basis for the appointment of judges. But, as far as the appointment of ad hoc judges is concerned in the resent situation not a single point of this historic judgment bars the appointment of any ad hoc judge.
Wajih also declared that recommendation of Justice Saqib Nisar to be elevated to the Supreme Court was absolutely in accordance with the law and the Al-Jihad Trust Case judgment. The appointment of Justice Ramday as an ad hoc judge was also not in conflict with either the Constitution or this ‘96 judgment.
